United States v. Pla

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEV ENT H CIR CUIT September 19, 2003 No. 02-16815 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 97-00409-CR-KMM

UNI TED STA TES OF A MER ICA,

Plaintiff- Appe llee,

versus

BRIA N PL A,

Defen dant-A ppellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (September 19, 2003)

Before TJOF LAT, BIR CH and G ODBO LD, Circuit Judges. PER CURIAM:

This case arises from a motion to withdraw as appointed appeals counsel pursuant to Ande rs v. Calif ornia, 386 U.S. 738 (1967). In 1997 the appellant pled guilty to one count of importing cocaine into the United States in violation of 21 U.S.C. §952(a). He was ordered to serve 38 months in prison followed by three years of supervised release. He began serving his three year supervised release term in November of 2000. Between November of 2000 and August of 2002, the appellant repeatedly violated the terms of supervised release by testing positive for marijuana. Subsequent to the third positive testing he failed to report for further urinalysis and w as arrested in Octo ber of 2 002 on bond v iolations. T he cour t, pursuant to 18 U.S.C. §3583(e)(3), (g) and (h) revoked appellant’s supervised release and ordered that he be imprisoned for nine months followed by 51 months of supervised release. Appellant’s counsel timely objected to the length of the superv ised releas e and no w app eals.

“This court reviews de novo the legality of a sentence, including a sentence imposed pursuant to revocation of a term of supervised release.” U.S. v. Aimufa, 122 F.3d 1376, 13 78 (11th C ir. 1997). In d etermining w hether appo inted counse l’s motion to withd raw sh ould be granted this cour t review s the full re cord to determin e wheth er the case is who lly frivolo us. Anders, 386 U .S. at 744 . If it finds “any of the legal points arguable on their merits . . . it must, prior to decision, *3 afford the indigent the assistance of counsel to argue the appeal.” Id.

In U.S. v. Gresham this court found that 18 U.S .C. §3583(e)(3) authorizes a court revoking a person’s supervised release to impose both a new prison term and a new term of supervised release. 18 U.S.C. §3583(e)(3) caps the length of supervised release pending on the class of felony originally committed and any prison term served after the initial supervised release revocation is subtracted from this cap. 325 F.3d 1262, 1267 (11th Cir. 2003). This court further held that “[i]mplicit in both the [U.S. v. Williams, 2 F.3d 36 3 (11th C ir. 1993)] pan el’s analysis and the Supreme Court’s analysis in [Johnson v. U.S., 529 U.S. 694 (2000 )] is the fact th at the sup ervised r elease term starts anew once it is re voked . Neither court contemplated a defendant receiving credit for prior time served.” Id.

Appellant’s appeal addresses the issue of whether 18 U.S.C. §3583(h) requires the court to give credit for time previously served o n supervised release when it revokes the initial term of supervised release and orders an additional prison te rm follo wed b y a new term of s upervis ed release . Subse ction (h) states:

Supervised release following revocation -- When a term of supervised

release is revoked and the defendant is required to serve a term of

imprisonment, the court may include a requirement that the defendant

be placed on a term of supervised release after imprisonment. The

length of such a term of supervised release shall not exceed the term

of supervised release authorized by statute for the offense that resulted

in the original term of supervised release, less any term of

imprisonment that was imposed upon revocation of supervised

release.

The above language differs from subsection (e)(3) in that it is silent on the issue of whether credit ought to be g iven for time previously served on p ost-release supervision. The only credit that subsection (h) clearly enumerates is time served in prison post revocation of supervised release. The Supreme Court has held that “[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” U.S. v . Smith, 499 U.S. 160, 167 (1991) (quoting Andrus v. Glover Constr. Co., 466 U .S. 608 , 616-1 7 (198 0). Thu s, by exp licitly stating that credit shall only be given for time served in prison post revocation, congressional intent was to foreclose any o ther type of credit. This silence is also consisten t with su bsection (e)(3), w hich also foreclos es credit fo r time pre viously served o n super vised release. This decision is consiste nt with o ur sister cir cuits. U.S. v. Pettus, 303 F .3d 480 , 484-5 (2d Cir . 2002) ; U.S. v. Cade, 236 F.3d 463, *5 467 (9th Cir. 2000).

Moreover, the appellant contends that the original sentence of three year supervised release ordered by the court binds the court on revocation to the maximum of three years that m ay be divided between add itional supervised release and/or prison term. 18 U.S.C § 3583 (g) states that the court shall revoke the term of supe rvised re lease for e numer ated instan ces includ ing failing to comp ly with drug testing and repeatedly testing positive for illegal controlled substance. Upon revocation the court will “require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e) (3).” Subsection (e)(3) authorizes the court to impose additional prison term and/or supervised release not to exceed “5 years in prison if the offense that resulted in the term of supervised release is a class A felony,” the class of felony of which the appe llant had b een con victed. T hese tw o subse ctions rea d in conjunction with subsection (h) authorize the court to divide the 5-year maximum sentence between prison term and supervised release as the court sees fit. The language of §3583(e)(3), (g) and (h) makes clear that the length of additional supervised release and prison term upon revocation is not bound by the original term of s upervis ed release but by th e class of f elony of which the appe llant is convicted. Thus “the aggregate of pre-revocation and post-revocation supervised *6 release terms may exceed the maximum length of supervised release that § 3583(b) dictates should attach to the underlying offense.” Gresham, 325 F .2d at 12 68.

Counsel’s Motion to withdraw is GRANTED, and the revocation and sentence are AF FIRM ED.